Madhya Pradesh High Court
Preeti Kushwah vs The State Of Madhya Pradesh on 24 September, 2020
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
THE HIGH COURT OF MADHYA PRADESH
WP No. 14001 of 2020
Preeti Kushwah vs. State of MP
Gwalior, dtd. 24/09/2020
Shri Chetan Kanungo, counsel for the petitioner.
Shri Sankalp Sharma, Panel Lawyer for the respondents/ State
This petition under Article 226 of the Constitution of India has been filed seeking the following reliefs:-
7(a) The petition may kindly be allowed.
(b) Respondents be directed to grant the benefits to the petitioner in accordance with the judgment of the Hon'ble Apex Court in the case of Ram Naresh Rawat vs Ashwini Ray and Ors [ (2017) 3 SCC 436].
(c) Any other relief which the Hon'ble Court deems fit in the facts and circumstances of the case.'' It is the case of the petitioner that in the year 2006, her father was classified as a permanent employee and he died in harness on 29/05/2015. In the year 2016, the Supreme Court in the case of Ram Naresh Rawat vs. Ashiwni Ray and Ors, reported in (2017) 3 SCC 436 decided that the employees are entitled for minimum pay scale. It is submitted that during his life time, the father of the petitioner was also entitled for the benefit of minimum payscale in terms of the judgment passed by the Supreme Court in the case of Ram Naresh Rawat (supra),but the same has not been extended. Accordingly, this petition has been filed seeking the above-mentioned reliefs.2
THE HIGH COURT OF MADHYA PRADESH WP No. 14001 of 2020 Preeti Kushwah vs. State of MP Heard the learned counsel for the petitioner.
It is the case of the petitioner that her father was classified as a permanent employee and he expired on 29/05/2015, but in the light of the judgment passed by the Supreme Court in the case of Ram Naresh Rawat (supra), he was entitled for the minimum pay scale which was never paid to him and, therefore, the petitioner is entitled for the arrears.
Article 7 of the Limitation Act, 1963 provides that for recovery of wages, the period of limitation is three years. Although for filing a writ petition, no period of limitation is provided but if the petitioner had filed a suit for recovery of arrears, then the suit would have been dismissed on the ground of delay. The father of the petitioner had expired in the year 2015 and the Supreme Court passed the judgment in the case of Ram Naresh Rawat (supra) on 15th December, 2016. As the father of the petitioner has already expired, therefore, it cannot be said that the petitioner has a recurring cause of action. The delay and laches frustrates the equity.
The Supreme Court in the case of Karnataka Power Corpon. Ltd. Vs. K. Thangappan, reported in (2006) 4 SCC 322 has held as under :-
''6. Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, 3 THE HIGH COURT OF MADHYA PRADESH WP No. 14001 of 2020 Preeti Kushwah vs. State of MP causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prashad v. Chief Controller of Imports and Exports (1969) 1 SCC 185. Of course, the discretion has to be exercised judicially and reasonably.
7. What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd (1874) 5 PC 221 (PC at p. 239) was approved by this Court in Moon Mills Ltd. v. M.R. Meher AIR 1967 SC 1450 and Maharashtra SRTC v. Shri Balwant Regular Motor Service AIR 1969 SC 329 Sir Barnes had stated:
"Now, the doctrine of laches in courts of equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitation, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as it relates to the remedy."
8. It would be appropriate to note certain decisions of this Court in which this aspect has been dealt with in relation to Article 32 of the Constitution. It is apparent that what has been stated as regards that article would apply, a fortiori, to Article
226. It was observed in Rabindranath Bose v. Union of India AIR 1970 SC 470 that no relief can be given to the petitioner who without any reasonable explanation approaches this Court under Article 32 after inordinate delay. It was stated that though Article 32 is itself a guaranteed right, it does not follow from this that it was the intention of the Constitution-makers that this Court should disregard all principles and grant relief in 4 THE HIGH COURT OF MADHYA PRADESH WP No. 14001 of 2020 Preeti Kushwah vs. State of MP petitions filed after inordinate delay.
9. It was stated in State of M.P. v. Nandlal Jaiswal AIR 1987 SC 251 that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.'' The Supreme Court in the case of M.P. Ram Mohan Raja Vs. State of T.N. reported in (2007) 9 SCC 78 has held as under:-
''11. So far as the question of delay is concerned, no hard- and-fast rule can be laid down and it will depend on the facts of each case. In the present case, the facts stare at the face of it that on 8-10-1996 an order was passed by the Collector in pursuance of the order passed by the High Court, rejecting the application of the writ petitioner for consideration of the grant of mining lease. The writ petitioner sat tight over the matter and did not challenge the same up to 2003. This on the face of it appears to be very serious. A person who can sit tight for such a long time for no justifiable reason, cannot be given any benefit.'' The Supreme Court in the case of Shiv Dass Vs. Union of India 5 THE HIGH COURT OF MADHYA PRADESH WP No. 14001 of 2020 Preeti Kushwah vs. State of MP reported in (2007) 9 SCC 274 has held as under :
''6. Normally, in the case of belated approach writ petition has to be dismissed. Delay or laches is one of the factors to be borne in mind by the High Courts when they exercise their discretionary powers under Article 226 of the Constitution of India. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prashad v. Chief Controller of Imports and Exports AIR 1970 SC 769. Of course, the discretion has to be exercised judicially and reasonably.
7. What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd, PC at p. 239 was approved by this Court in Moon Mills Ltd. v. M.R. Meher and Maharashtra SRTC v. Balwant Regular Motor Service. Sir Barnes had stated:
"Now the doctrine of laches in courts of equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, if founded upon mere delay, that delay of course not amounting to a bar by any statute of limitation, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy."
8. It was stated in State of M.P. v. Nandlal Jaiswal that the High Court in exercise of its discretion does not ordinarily 6 THE HIGH COURT OF MADHYA PRADESH WP No. 14001 of 2020 Preeti Kushwah vs. State of MP assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.'' The Supreme Court in the case of Nadia Distt. Primary School Council Vs. Sristidhar Biswar reported in (2007) 12 SCC 779 has held as under :-
''11. In the present case, the panel was prepared in 1980 and the petitioners approached the court in 1989 after the decision**in Dibakar Pal. Such persons should not be given any benefit by the court when they allowed more than nine years to elapse. Delay is very significant in matters of granting relief and courts cannot come to the rescue of the persons who are not vigilant of their rights. Therefore, the view taken by the High Court condoning the delay of nine years cannot be countenanced.'' The Supreme Court in the case of U.P. Jal Nigam Vs. Jaswant Singh reported in (2006) 11 SCC 464 has held as under:-
''12. The statement of law has also been summarised in Halsbury's Laws of England, para 911, p. 395 as follows: "In determining whether there has been such delay as to amount to laches, the chief points to be considered are:
(i) acquiescence on the claimant's part; and
(ii) any change of position that has occurred on the defendant's part.7
THE HIGH COURT OF MADHYA PRADESH WP No. 14001 of 2020 Preeti Kushwah vs. State of MP Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the claimant has become aware of it. It is unjust to give the claimant a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches."
The Supreme Court in the case of Jagdish Lal Vs. State of Haryana reported in (1997) 6 SCC 538 has held as under :
''18. That apart, as this Court has repeatedly held, the delay disentitles the party to the discretionary relief under Article 226 or Article 32 of the Constitution.
The Supreme Court in the case of NDMC Vs. Pan Singh reported in (2007) 9 SCC 278 has held as under :
''16. There is another aspect of the matter which cannot be lost sight of. The respondents herein filed a writ petition after 17 years. They did not agitate their grievances for a long time. They, as noticed herein, did not claim parity with the 17 workmen at the earliest possible opportunity. They did not implead themselves as parties even in the reference made by the State before the Industrial Tribunal. It is not their case that after 1982, those employees who were employed or who were recruited after the cut-off date have been granted the said scale of pay. After such a long time, therefore, the writ petitions could not have been entertained even if they are similarly situated. It is trite that the discretionary jurisdiction may not be exercised in favour of those who approach the court after a long time. Delay and laches are relevant factors for exercise of equitable jurisdiction. (See Govt. of W.B. v. Tarun K. Roy, U.P. Jal Nigam v. Jaswant Singh and Karnataka Power Corpn. Ltd. v. K. Thangappan.)
17. Although, there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, ordinarily, writ petition should be filed within a reasonable 8 THE HIGH COURT OF MADHYA PRADESH WP No. 14001 of 2020 Preeti Kushwah vs. State of MP time. (See Lipton India Ltd. v. Union of India and M.R. Gupta v. Union of India.)
18. In Shiv Dass v. Union of India this Court held: (SCC p. 277, paras 9-10)
"9. It has been pointed out by this Court in a number of cases that representations would not be adequate explanation to take care of delay. This was first stated in K.V. Rajalakshmiah Setty v. State of Mysore. There is a limit to the time which can be considered reasonable for making representations and if the Government had turned down one representation the making of another representation on similar lines will not explain the delay. In State of Orissa v. Pyarimohan Samantaray making of repeated representations was not regarded as satisfactory explanation of the delay. In that case the petition had been dismissed for delay alone. (See also State of Orissa v. Arun Kumar Patnaik.) In the case of pension the cause of action actually continues from month to month. That, however, cannot be a ground to overlook delay in filing the petition. It would depend upon the fact of each case. If petition is filed beyond a reasonable period say three years normally the Court would reject the same or restrict the relief which could be granted to a reasonable period of about three years. The High Court did not examine whether on merit the appellant had a case. If on merits it would have found that there was no scope for interference, it would have dismissed the writ petition on that score alone."
As this petition has been filed after 5 years of death of the employee/, accordingly, this Court is of the considered opinion that this petition suffers from delay and laches and accordingly, the petition is dismissed on the ground of delay and laches.
(G. S. Ahluwalia) Judge MKB MAHENDRA KUMAR BARIK 2020.09.28 11:26:00 +05'30' VALSALA VASUDEVAN 2018.10.26 15:14:29 -07'00'